The intersection of “causation of injury” and “causation of disability” in the world of psychiatric claims often stymies even the most experienced of adjusters, attorneys, and doctors. How important is this? Correctly handled, cases with huge permanent disability (PD) reserves might settle for peanuts.
When analyzing causation and apportionment, one must first understand the two different stages of analyzing disability in a workers’ compensation claim.
PHASE 1: THRESHOLD: THE BOUNCER
We are going to describe the threshold issue of causation by using an analogy of a bouncer at a popular nightclub.
The famous en banc decision of Rolda v. Pitney Bowes, Inc. (2001) 66 CCC 241 often serves as a bouncer, and determines who can get into the club. The Rolda case established a four-step analysis to determine whether a psychiatric injury is barred by the “good faith personnel action” (GFPA) defense under Labor Code § 3208.3(h):
When hoping to get into a ridiculously popular club (and you don’t have VIP tickets), you must deal with the bouncer. They will decide whether you are coming in or staying out in the rain. Think of Rolda as the bouncer and the injured worker as the wannabe partier.
Rolda set forth a four-part factors test, and those factors are:
- Actual Events: Does the psychiatric injury involve “actual events of employment”? (WCJ addresses)
- Predominant Cause: Were those actual events of employment the predominant cause (greater than 50%) of the psychiatric injury? (Med-legal reports address this)
- Good Faith Personnel Action (GFPA): Were any of the actual employment events personnel actions that were lawful, nondiscriminatory, and made in good faith? (WCJ addresses)
- Substantial Cause: Were those lawful, nondiscriminatory, GFPAs a “substantial cause” (at least 35% to 40%) of the psychiatric injury? (Med-legal reports address this)
In order to pass the Rolda test, an employee must prove that their injury involved “actual events.” In other words, “actual events” cannot be a figment of the employee’s imagination, or a lying heart.
Those events must be the predominant cause of their injury. And if the injury was caused at least in part by GFPAs, the employee has to prove that the GFPAs were not the a “substantial cause” of said injury.
The result: Rolda is an all-or-nothing test. If the worker passes the Rolda math, they are “in the club.” The employer must accept the claim, possibly pay for psychiatric treatment, possibly temporary disability, and possibly PD.
PHASE 2: APPORTIONMENT: THE BARTENDERXx
If a psyche claim survives Rolda, the employee will eventually be evaluated for PD. Once PD is calculated, the apportionment statute Labor Code § 4663 permits some of that PD to be eliminated. While there is a second apportionment statute of LC § 4664, let’s ignore that statute for now for the purposes of our example.
According to LC § 4663 and landmark en banc decisions like Escobedo v. Marshalls (2005) 70 CCC 604 (En Banc), apportionment does not happen until the end of a the PD process, after an applicant has reached maximum medical improvement (MMI).
Psyche PD requires the parties to use the Global Assessment Function (GAF), adjusted by a 1.4 modifier, as well as occupation and age, as per the applicable permanent disability rating schedule (PDRS). Now, the question changes to the following, “How much PD is owed?”
To answer that, we’ve got to split into three categories:
- Focus: The doctor is no longer looking just at the triggering events. They must look at what is causing (causation) the worker’s current PD.
- Math: The doctor must apportion from the final overall PD percentage the PD caused by any other factors (prior injuries, genetics, pre-existing pathology, personality disorders). The doctor is longer looking just at the triggering events. They must look at what is causing the worker’s final PD. (In other words, how big the pour of alcohol/PD is the bartender/doctor going to assign to the drinker/employee, and how much are they going to keep in the bottle/apportion away?)
- Result: If the doctor says 50% of the PD is apportionable to a pre-existing condition, the employer’s PD liability is halved.
HOW ROLDA AND APPORTIONMENT INTERACTXx
Let’s run through some new scenarios to see how the bouncer and bartender treat our applicants.
Scenario A: Rolda Defeats Claim
- If the doctor determines that a good faith personnel action caused 40% of the psychiatric stress, the Rolda defense wins. Apportionment is not an issue. The bouncer has won. The applicant does not reach the bartender.
Scenario B: Claim Survives Rolda, Triggering Apportionment
- An overly-demanding workload caused 80% of the injury.
- The judge says that the overly-demanding workload was not a good-faith personnel action.
- The evidence shows that good-faith personnel actions only caused 10% of the injury.
- This means that the claim is compensable. The applicant has made it into the club, and proceeds to the bartender.
- The applicant bellies up to the bar.
- Once the doctor has calculated PD, they can consider apportionment. Let’s say the doctor found 50% PD.
- However, our doctor/bartender states to a reasonable medical probability the employee’s pre-existing schizophrenia contributed to half of the PD.
- Half of the PD is 25% PD that is industrial, with the remaining half being nonindustrial. That’s a tall pour!
Scenario C: Another Example of How a Claim Survives Rolda, Triggering Apportionment
- The employee gets by bouncer Rolda because work stress caused 60% of their psyche breakdown, and it was not due to good faith personnel actions.
- The worker is now past the bouncer and proceeds to the bar.
- Our bartender doctor finds 90% PD, but explains that “The work stress triggered it, but the worker has a severe genetic predisposition to schizophrenia that accounts for 90% of their current PD.”
- Even though the applicant easily passed Rolda, their final PD payout is slashed by 90%.
HOW DOCTORS GET IT WRONG (AND GET DEPOSED)
The most common mistake doctors make is using Rolda math for apportionment, or vice versa.
For example, a doctor might say, “Because work was only 60% the cause of the injury under Rolda, I am apportioning the final PD 60% to work and 40% to non-industrial factors.”
Case law strictly forbids this. The factors that caused the injury (the events) are rarely the exact same mathematical proportions as the factors causing the PD (the pathology). A doctor must provide a totally separate analysis for apportionment.
This can be cured at deposition time. Via careful questioning, ascertain whether the doctor is simply confused and can be sufficiently educated to provide the correct analysis. If that is an option, so proceed. This will also provide you the opportunity to draw the doctor’s attention to other factors that should be considered to provide even more apportionment.
If, however, the doctor is either insufficiently sophisticated to follow the requisite medical-legal concepts or is taking a position aimed at providing the employee more PD than is legally-called for, take off the gloves, tear the report apart, and make sure no WCJ will find it qualifies as substantial medical evidence.
Don R. Barthel is one of the founding partners of Bradford and Barthel, and is based in the firm’s Sacramento office. He has taken dozens of doctor depositions and analyzed thousands of medical-legal reports in order to correct innumerable errors, including misapplications of the AMA Guides, statutory misunderstandings, and other errors making the underlying medical reporting entirely speculative and unreliable. If you have any questions about workers’ compensation defense issues, please feel free to contact him at 916.569.0790 or via email at dbarthel@bradfordbarthel.com.
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